Cory A. Gilmore

Applicants sought to set aside a will that disinherited one daughter and left the estate to the other daughter and her children.

The court accepted uncontradicted extrinsic affidavit evidence that the testator's reason for the disinheritance was that the disinherited daughter had a child with a Caucasian man.

Applying the public policy doctrine, the court held the racist basis for the testamentary disposition rendered the will contrary to public policy, notwithstanding that the will's text was facially neutral.

The will was set aside, an intestacy resulted under the Succession Law Reform Act, and the estate was to be divided equally between the daughters.

On a summary judgment motion in a hospital privileges dispute, the defendants argued that the tort claims were statute barred and, alternatively, had to be stayed pending review by the statutory appeal tribunal under the Public Hospitals Act.

The court held that the claims against two individual physicians were out of time because the alleged conspiracy was discovered in 2008 and there was no evidence supporting continuation of the impugned conduct within the limitation period.

However, the court held the claims against the hospital defendants were not barred because it was not legally appropriate to commence a civil damages action until the statutory hospital process had run its course, and in any event the pleaded conduct could constitute a continuing cause of action.

The court further held no stay was required because no decision cancelling, suspending, or substantially altering privileges had been made that could ground an appeal to HPARB.

In a personal injury action arising from a multi‑vehicle rear‑end collision, third parties sought summary judgment dismissing the third‑party claim and cross‑claims against them.

The moving parties argued that the rear‑ending driver’s negligence was the proximate cause of the accident and relied on the so‑called “clear line” doctrine to argue their conduct could not have contributed to the collision.

The defendants and another third party argued that the driver who stopped in a live lane of traffic may have breached duties under the Highway Traffic Act and that factual disputes existed regarding traffic conditions, visibility of hazard lights, and whether the vehicle was disabled.

Applying the modern summary judgment framework from Hryniak v. Mauldin, the court held that credibility disputes and complex issues of causation and negligence required a trial.

The court further noted that the “clear line” doctrine could not displace the modern “but for” causation analysis.

A simplified procedure trial concerning alleged wrongful sale or removal of gym equipment following a commercial tenant lockout.

The corporate plaintiff sought damages for equipment leased to a fitness club, while the individual plaintiff claimed losses for equipment he personally owned.

Evidence revealed that the corporate plaintiff had been dissolved prior to the issuance of the claim, rendering its claim a nullity that could not be revived after the limitation period.

The court accepted that certain spin bikes and Cybex equipment personally owned by the individual plaintiff were wrongfully removed or sold by the defendants after the lockout.

Damages were assessed based on estimated market values derived from appraisals and auction evidence.

The plaintiff brought a motion for summary judgment arising from a solicitor’s breach of undertaking to repay loans advanced to a client from settlement proceeds of litigation.

The solicitor conceded breach but argued liability was limited to the $40,000 expressly covered by written undertakings.

The court held that additional losses were a reasonably foreseeable consequence of the breach because the lender relied on the undertaking and continued advancing funds while unaware of settlements.

Documentary evidence including cheques and a promissory note constituted sufficient corroboration under s. 13 of the Evidence Act.

Summary judgment was granted for $100,000 plus pre‑judgment interest.

The landlord appealed a Landlord and Tenant Board decision dismissing its application for arrears of rent related to an air conditioning charge.

The LTB Member had relied on a previous decision involving the same landlord but a different tenant to find the charge invalid.

The Divisional Court allowed the appeal, finding the Member erred in applying issue estoppel because the parties and the specific issues were different.

The matter was remitted back to the LTB for a re-hearing before a different Member.

The appellant appealed a trial judgment regarding child support, section 7 expenses, net family property, and costs.

The Divisional Court dismissed the majority of the appeal, finding no palpable and overriding errors in the trial judge's decisions not to impute income, to cap figure skating expenses at $10,000 per year, and to limit the life insurance obligation to age 18.

However, the court allowed the appeal on the issue of trial costs, awarding the appellant $7,500 because her offer to settle was more favourable than the trial result.

Costs of the appeal were awarded to the respondent.

The appellant, an occupant of a residential unit, appealed an order of the Landlord and Tenant Board terminating the tenancy.

The Board had accepted the consent of the named tenant to terminate the tenancy, finding that the appellant was not a party to the application.

The Divisional Court allowed the appeal, holding that the Board committed a reversible error of law by denying the appellant procedural fairness.

Under section 187(1) of the Residential Tenancies Act, the appellant was a person directly affected by the application and should have been accorded party status.

The matter was remitted to the Board for a new hearing.

The applicant sought judicial review of three Social Benefits Tribunal decisions regarding Ontario Works overpayments and cancellation of assistance.

The Divisional Court dismissed the application, noting that the applicant had already appealed one decision unsuccessfully, had prior civil actions regarding the other decisions dismissed, failed to pursue her statutory right of appeal within the required time, and raised questions of fact rather than law.

The self-represented appellant appealed an order requiring him to post $30,000 in security for costs in his action for assault and false arrest against retail security guards.

The Divisional Court allowed the appeal, finding the motion judge erred in law by failing to address whether the action was 'frivolous and vexatious' under Rule 56.01(1)(e).

Given the conflicting evidence regarding the degree of force used during the arrest, the court concluded there was no good reason to believe the action was frivolous and vexatious.

The applicant sought judicial review of a municipal committee decision upholding the designation of his two dogs as 'Dangerous Dogs' after they were involved in an incident that resulted in the death of another dog.

The applicant argued procedural unfairness and that the committee erred in its interpretation of the by-law because it could not determine which specific dog caused the fatal injury.

The Divisional Court dismissed the application, finding that the hearing was procedurally fair and that the committee's decision to designate both dogs was reasonable given their joint involvement in the attack.

The appellant appealed a decision of the Social Benefits Tribunal finding he did not meet the definition of a person with a disability under the Ontario Disability Support Program Act.

The appellant argued the Tribunal erred in law by misapprehending new medical evidence filed before the hearing.

The Divisional Court dismissed the appeal, finding the Tribunal correctly weighed the new evidence, determining it was either inconsistent with earlier reports or reflected a deterioration in condition after the Director's decision.

The appellant, a licensed electrical contractor, appealed a decision of the review panel of the Electrical Safety Authority confirming a defect notice.

The notice was issued after the appellant disconnected and reconnected an electrical panel without authorization, allegedly violating rule 2-012 of the Ontario Electrical Safety Code.

The Divisional Court determined the standard of review was reasonableness and found the review panel's broad interpretation of the rule—requiring authorization for all disconnections regardless of method or reason—was reasonable.

The appeal was dismissed.

The appellant commenced a Small Claims Court action for goods sold and delivered.

The respondent counterclaimed and later commenced a Superior Court action for a higher amount, successfully moving to transfer the Small Claims Court proceedings to the Superior Court.

The Divisional Court allowed the appeal, finding the motions judge erred by failing to consider whether the issues were capable of being justly resolved in the Small Claims Court, as required by the Vigna test.

The transfer order was set aside, allowing the Small Claims Court action to proceed.

The appellant appealed a decision dismissing her application to set aside a judgment related to a mortgage default and power of sale, claiming damages of $98,000.

The Divisional Court found it lacked jurisdiction, as its jurisdiction is limited to claims of not more than $50,000 under s. 19(1.2) of the Courts of Justice Act.

The court declined to exercise its discretion to transfer the appeal to the Court of Appeal, noting the appeal lacked merit and the appellant had taken no steps to transfer it despite notice.

The appeal was dismissed without prejudice to the appellant seeking to have it heard in the Court of Appeal.

The accused applied for a Rowbotham order seeking state-funded counsel under s. 7 of the Charter after Legal Aid Ontario denied funding.

The court considered whether the accused met the three-part Rowbotham test: ineligibility for Legal Aid after exhausting appeals, indigence preventing retention of counsel, and risk that the absence of counsel would compromise the right to a fair trial.

Although the court accepted that Legal Aid appeals had been exhausted and that the complexity and seriousness of the case could compromise trial fairness without counsel, it found that the accused failed to establish indigence.

The court concluded that the accused had divested himself of assets through questionable non-arm’s-length property transfers and failed to provide corroborating financial documentation.

As a result, the application for state-funded counsel was dismissed.

The plaintiff municipality brought a motion for an interlocutory mandatory order requiring the defendants to remove a berm constructed on their property adjacent to a municipal road.

The municipality argued the berm caused flooding in the road's drainage ditches, creating safety hazards and potential damage to the pavement structure, and blocked water flow to a provincially significant wetland.

The defendants claimed the flooding was caused by the municipality's own ditch maintenance work.

The court preferred the municipality's expert evidence, finding the berm caused the flooding and was located within the wetland setback in breach of conservation regulations.

The court held that the municipal ditch formed part of the 'highway' under the Municipal Act, 2001, and granted a statutory injunction and an injunction for public nuisance, ordering the defendants to remove the berm.

Sentencing decision following convictions for sexual assault, sexual interference, and invitation to sexual touching involving a child relative.

The offences occurred repeatedly over approximately one to one and a half years and involved sexual touching between the accused and a child victim in a familial setting, constituting a breach of trust.

The court considered aggravating factors including the victim’s young age, the repeated nature of the conduct, and significant psychological harm reflected in a victim impact statement, as well as mitigating factors including the offender’s lack of criminal record and stable employment history.

Emphasizing denunciation and deterrence in accordance with Criminal Code sentencing principles, the court imposed a custodial sentence below the Crown’s requested penitentiary range but above the defence’s proposed range.

Two related condominium applications were heard together concerning unpaid common expenses for parking units associated with a residential condominium unit.

The owner relied on an error in the condominium corporation’s status certificate that failed to include common expense amounts for two parking spaces and argued it was bound by the certificate under s. 76 of the Condominium Act, 1998.

The corporation sought enforcement under s. 134 of the Act and confirmation of a condominium lien for unpaid common expenses.

The court held that while the status certificate bound the corporation for the fiscal year in which it was issued, it did not relieve the owner from ongoing obligations to contribute to common expenses thereafter.

The lien was confirmed but reduced due to the corporation’s initial error, with limited costs awarded.

The plaintiff mortgagee brought a motion for summary judgment seeking payment of a mortgage debt, possession of the mortgaged commercial property, dismissal of the defendants’ counterclaim, and leave to issue a writ of possession.

The defendants sought an adjournment to obtain counsel and additional documentation and argued that the mortgage assignment and notice requirements were defective.

The court held that the defendants failed to produce documentary evidence supporting their claims of mortgage renewal or payments and did not meet their obligation to put their best foot forward on the motion.

The court further found that notice of assignment through a notice of sale satisfied statutory requirements and that the mortgage was clearly in default.

Summary judgment and possession were granted, with issuance of a writ of possession delayed for thirty days to allow occupants to vacate.